PRESUMPTIONS INFERRED BY TITLE

Question 1

What is the CP Presumption?

Answer 1

All property, real or personal, wherever situated, acquired by a person during a marriage is presumed CP. The SP proponent has the burden to rebut the CP presumption. Tracing is one way to rebut the CP presumption.

Question 2

What happens when real property is obtained with SP funds but titled CP ?

Answer 2

When the source of funds for a property is SP, but title is taken jointly, it is presumed to be a gift to the community and characterized as CP, unless there is a contrary written intent, subject to reimbursement at divorce

Question 3

What happens when real property is obtained with CP funds but titled SP?

Answer 3

When the source of funds for a property is CP, but title is taken by one spouse only, the property will retain its characterization as CP , unless there is a written transmutation.

Question 4

What happens when title is evidence of a gift?

Answer 4

Where a spouse intends to give the other spouse a gift and title is taken in a way to evidence that gift, the property will be the SP of the gifted spouse. There is no writing requirement. For example: A husband buys his wife a car for their anniversary and titles it in her name only.

Question 5

At divorce, How is joint titled property divided under Marriage of Lucas (1980)?

Answer 5

At divorce, real property titled as joint tenancy is presumed to be CP. Any SP contribution of funds is a gift to the community and is not subject to reimbursement absent an oral or written agreement.

Question 6

At Death, How is joint titled property divided under Marriage of Lucas (1980)?

Answer 6

At death, all jointly titled property of either spouse is presumed to be CP at the death of either spouse, unless there is an express agreement to the contrary and is not subject to reimbursement absent an oral or written agreement.

Question 7

At divorce, How is joint titled property divided under Anti-Lucas (1984)?

Answer 7

At divorce or legal separation all jointly titled property of the spouses is presumed to be CP. The presumption may be rebutted only by a written agreement or a clear statement in the deed or title.

Question 8

How is joint titled property divided with the 1987 amendments?

Answer 8

All property in joint form such as tenants in common, joint tenancy, and community property must meet with the writing requirement. Rebuttal to the CP presumption depends upon when property was acquired.

Question 9

If a spouse made a SP contribution to a acquisition of a jointly titled property, are they subject to reimbursement under [Pre-1984 Marriage of Lucas ] ?

Answer 9

Reimbursement available to the SP contributor only if there is an oral, implied or written agreement. If there is not an agreement, the SP contribution is considered a gift to the community.

Question 10

If a spouse made a SP contribution to a acquisition of a jointly titled property, are they subject to reimbursement after 1984?

Answer 10

There is a statutory right to interest-free reimbursement based on tracing. If the jointly titled property is treated as community property, then at divorce any separate property contributions to the acquisition of the property shall be reimbursed to the separate property contributor without interest or appreciation. SP reimbursements are only allowed for expenditures made for down payments, payments for improvements, and payments that reduce the principal of a loan.